Lenoci v. Kayla Leonard.

Decision Date21 April 2011
Docket NumberNo. 10–163.,10–163.
Citation2011 VT 47,21 A.3d 694
CourtVermont Supreme Court
PartiesPamela LENOCI, Administratrix of the Estate of Alexandra Brownv.Kayla LEONARD.

OPINION TEXT STARTS HERE

Present: DOOLEY, JOHNSON, SKOGLUND, BURGESS, JJ. and CRAWFORD, Superior Judge, Specially Assigned.

ENTRY ORDER

¶ 1. This case asks the Court to decide if an eighteen-year-old has a duty to control the behavior of a fifteen-year-old friend and, if the fifteen-year-old later commits suicide, whether the eighteen-year-old is at fault. We affirm the trial court's grant of summary judgment to defendant and conclude she had no duty to intervene to prevent the tragedy that occurred.

¶ 2. Alexandra Brown was fifteen years old when she committed suicide in the early morning of February 21, 2007. Two nights before, on February 19, she and eighteen-year-old Kayla Leonard, defendant, had decided to go to a party at an acquaintance's apartment. Each girl had lied to her parents, telling them that she was sleeping over at the other's house. Kayla picked Alex up at her home and drove them both to the apartment. There the girls danced and drank alcohol Alex provided. Kayla was concerned some of the young men at the party might “take advantage” of Alex, and at one point she stopped Alex from dancing inappropriately. Ultimately, the girls spent the night, sharing a room with a nineteen-year-old man who lived in the apartment. During the night Alex had sexual intercourse with the nineteen-year-old. Kayla was aware the two were intimate but did not know they had intercourse.

¶ 3. Kayla drove Alex home the next morning. Alex had made plans to return to the nineteen-year-old man's apartment. She got her stepfather's permission to spend the night at another girl's house. Her stepfather became suspicious, however, when he saw Alex leave the house, walk down the driveway to a car, and drive away. He called Alex's mother, who was in Florida at the time, and told her of his suspicions. Alex's mother called the girl's house and found out that there were no plans for Alex to spend the night. She then called Alex's cell phone and left a message confronting Alex with her deceit. The State Police were called. One officer called Alex's cell phone twice and asked her to simply get in touch with either him or her mother to let them know she was all right. Alex's mother called several more times and left messages, including one that threatened “massive, massive consequences” because of Alex's behavior.

¶ 4. Throughout the night, while driving around Rutland with a friend and later alone at her house, Alex sent numerous text messages to her friends telling them she had been caught by her parents and describing the trouble she was in. She also sent numerous text messages to her boyfriend, who was away at college, one of which said, “I got caught tonight. I'm grounded forever. Goodbye.” Alex also spoke with her boyfriend by phone and admitted that she had gotten drunk the night before. Later, she left her boyfriend a voicemail on his cell phone in which she admitted to having sex with the nineteen-year-old. While she mentioned suicide in some of her text messages, she never sent Kayla such a message.

¶ 5. At some point in the evening, back at her house, Alex composed a suicide note. In it, she lamented having had sex with the nineteen-year-old and said that she felt her boyfriend hated her and that she hated herself. She also expressed love for her boyfriend. Approximately one week beforehand, she and her boyfriend had a fight over the phone during which she told him that she felt like committing suicide and that she had even decided how she would take her life. On this night, after writing the suicide note, Alex carried out the plan she had discussed and hanged herself from a tree in her yard. Her body was discovered by a neighbor the next morning.

¶ 6. Plaintiff, Alex's mother acting as administrator of her estate, sued Kayla alleging that Kayla was negligent for bringing Alex to the apartment party, that Kayla should have intervened to prevent Alex from having sexual intercourse with the nineteen-year-old, and that, because she failed to do so, Kayla negligently caused Alex to suffer emotional harm. Plaintiff further claimed that Kayla's negligence caused a delirium or insanity in Alex and “as a proximate result thereof, she committed suicide.” Kayla moved for summary judgment arguing that she owed no duty to Alex and that her actions were not the proximate cause of Alex's suicide. The trial court granted Kayla's motion, and from that decision plaintiff appeals.

¶ 7. Plaintiff contends the trial court erred in finding Kayla did not owe Alex a duty. She suggests such a duty arose when Kayla, an eighteen-year-old, brought Alex, a minor, to a party with alcohol and adults present and recognized, or should have recognized, the “unreasonable risk of sexual assault” Alex faced. Plaintiff further argues that there was ample evidence supporting her theory that Kayla's negligence caused Alex's death and emotional distress and summary judgment was therefore premature. We affirm the trial court, holding that Vermont law does not recognize the duty sought under these circumstances. We additionally address the trial court's holding that Alex's suicide broke any causal connection to Kayla's actions.

¶ 8. Our standard for reviewing a grant of summary judgment is well rehearsed: we apply the same standard as the trial court, affording its decision no deference. Myers v. Langlois, 168 Vt. 432, 434, 721 A.2d 129, 130 (1998). Accordingly, we will affirm if there is no genuine issue of material fact and the prevailing party is entitled to judgment as a matter of law. V.R.C.P. 56(c)(3).

¶ 9. Under our criminal code, a fifteen-year-old is incapable of having consensual sex with a nineteen-year-old unless the two are married. See 13 V.S.A. § 3252(c). Similarly, a highly intoxicated person cannot be said to consent to having sex. See id. § 3254(2). However, this is a civil case, and the question for the Court is one of duty. To support a negligence claim, a plaintiff must show that the defendant owed her a legal duty, that the defendant breached that duty, that the breach was the proximate cause of the plaintiff's injury, and that she suffered actual loss or damage. Endres v. Endres, 2008 VT 124, ¶ 11, 185 Vt. 63, 968 A.2d 336. Thus to maintain either her wrongful death or negligent-infliction-of-emotional-distress claim—both of which sound in negligence—plaintiff must establish that Kayla owed Alex a duty. The existence of duty is a question of law. Edson v. Barre Supervisory Union #61, 2007 VT 62, ¶ 9, 182 Vt. 157, 933 A.2d 200. Absent a duty of care, an action for negligence fails. Rubin v. Town of Poultney, 168 Vt. 624, 625, 721 A.2d 504, 506 (1998) (mem.).

¶ 10. Plaintiff argues that Kayla owed a duty to Alex to prevent the sexual intercourse that occurred. She relies on several theories to support her claim. First, she argues that once Kayla observed the drinking and licentious behavior at the apartment party, she should have realized she had exposed Alex to an unreasonably risky situation by bringing her to the apartment. Plaintiff relies on the principle that [i]f the actor does an act, and subsequently realizes or should realize that it has created an unreasonable risk of causing physical harm to another, he is under a duty to exercise reasonable care to prevent the risk from taking effect,” even if at the time of acting, “the actor has no reason to believe that it will involve such a risk.” Restatement (Second) of Torts § 321 (1965).

¶ 11. It cannot be said that Kayla, by driving Alex to the apartment and witnessing her conduct while there, created a risk that Alex would have sexual intercourse that night. Both girls had decided to go to the apartment, and Alex chose to engage in certain behavior while there. There was no suggestion that Alex was not there voluntarily or that her behaviors were coerced or that Kayla somehow accepted responsibility for Alex upon picking her up or watching out for her while there. Mere presence at the apartment, moreover, did not result in Alex and the nineteen-year-old's interaction. Alex made her own choices that night, and Kayla did not create a potentially dangerous situation such that she had a duty to prevent harm to Alex.

¶ 12. Plaintiff essentially advocates that we find a duty simply because one girl was eighteen and the other was fifteen. The law does not impose such a duty in this situation—a duty for an eighteen-year-old to protect a high school friend who has not reached the age of majority from the consequences of the younger person's independent behavior or to control such behavior. See Restatement (Second) of Torts § 314 (“The fact that the actor realizes or should realize that action on his part is necessary for another's aid or protection does not of itself impose upon him a duty to take such action.”). The consequences to the community should such a duty be found would be considerable, transforming every high school friendship at the moment one friend turns eighteen into an in loco parentis relationship. Plaintiff has made no convincing argument that Kayla was somehow in a position to control Alex's behavior that night by virtue of the less-than-three-year difference in their ages.

¶ 13. Plaintiff alternately contends that we should evaluate the factors set out in Langle v. Kurkul as part of our analysis of whether any duty existed. 146 Vt. 513, 510 A.2d 1301 (1986). In Langle, through a discussion of decisions from other states, we identified a number of factors to consider in determining whether a duty exists. Id. at 519, 510 A.2d at 1305. We noted that foreseeability of the risk is often a primary consideration. Id. Other factors include:

the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the...

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